Law On Appreciation Of Dying Declaration Not Correctly Applied: Bombay HC Sets Aside Conviction U/s. 302 IPC

While acquitting the accused from the offences registered under Section 302 read with Section 34 of IPC, the Bombay High Court held that the Trial Court had failed to consider the patent infirmity in the procedure that was followed while recording dying declarations, which has rendered the case of the prosecution weak. It said that the law on appreciation of dying declaration was not correctly applied by the Trial judge.

The Division Bench of Justice Vibha Kankanwadi and Justice Abhay S. Waghwase observed that "We have carefully gone through the impugned judgment passed by the learned trial Judge. In our opinion, while appreciating two dying declarations, the above salient features and discrepancies noted by us are totally overlooked. Law on appreciation of dying declaration has not been correctly applied. Learned trial Judge has apparently failed to consider and appreciate the evidence of DW1 Dr.Chandrakant at Exh.60 and has thereby committed error in recording guilt."

The observation came after considering an appeal filed by the accused (husband, mother-in-law, and sister-in-law of the deceased) against the decision of the District Judge and Additional Sessions Judge, whereby all three stood convicted for an offence under Section 302 read with 34 of IPC and thereby awarded imprisonment for life.

“On bare look at the foot of second dying declaration at Exh.48, one comes across the signature of Isub Ganibhai Shaikh. PW7 Shashikant Govind Joshi in his examination-in-chief in paragraph no.4 itself admits that he obtained the signature of a relative on the statement. This fortifies the case of defence that at the time of recording the dying declaration relative was around and therefore, the possibility of tutoring cannot be ruled out. Therefore, in the light of such material, there are reasons to hold that the second dying declaration at Exh.48 was recorded at a belated stage and that too in the presence of a relative. Such dying declaration at Exh.48, being very elaborate and in detail, there is reason to infer that the same is not voluntary and is rather tutored one”, said the Court.

Therefore, in the light of infirmities and distinct features emerging upon comparing both the dying declarations, the Bench added that said dying declarations cannot be said to be consistent or voluntary and truthful.

Advocate Nilesh S. Ghanekar appeared for the Appellants, whereas Additional Public Prosecutor V. S. Chaudhari appeared for the Respondents.

The counsel for the Appellants submitted that the two dying declarations which form the sole basis of the prosecution case are contrary to each other and the second dying declaration appears to be a tutored one. It was also submitted that the Trial Court has already acquitted the accused persons from the charges under Section 498A of IPC and hence, the accused persons should not have been held guilty under other provisions.

After perusing the order of the Trial Court and going through the facts of the case, the Bench found that there was a contradiction between the two dying declarations.

The Bench also noted that the first dying declaration was recorded after a delay of twelve hours, that too undated and without any properly identifiable signature, whereas, the second dying declaration which was recorded after two days of the incident, appeared to be tutored one and involuntary.

The Bench observed that the Trial Judge had failed to appreciate the evidence of the doctor who attended the deceased when she was brought to the hospital and who stated in his cross-examination that the deceased herself told her that she suffered injuries from a stove accident and was not under fear of severe pain.

The High Court pointed out that “on proper re-appreciation of evidence on record, patent infirmities which have surfaced are that, history of the occurrence given at the time of admission in the Civil Hospital, Ahmednagar, is not brought on record, Bed Head Ticket containing details of the line of treatment is also not finding a place and there is no prompt reporting of M.L.C. to the Police Chowki situated in the campus of Civil Hospital, Ahmednagar. Had it been done, steps for recording dying declaration at the earliest could have been taken”.

“In spite of recording the dying declaration Exh.29 at the Civil Hospital, Ahmednagar, PW7 Shashikant Govind Joshi, a Police official, has himself not made an enquiry with the deceased for the best reasons known to him. Equally, PW6 Akil Ganibhai Shaikh, father of the deceased, despite claiming to have received an oral dying declaration, surprisingly failed to report it immediately to the Police. Therefore, the above discrepancies and shortfalls have rendered the case of prosecution weak”, added the Bench.

Accordingly, the High Court allowed the appeal.

Cause Title: Shahrukh Salim Pathan and Ors. v. The State of Maharashtra and Anr.

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